I. INTRODUCTION
Imagine the following situation: you are at your local shopping center on a very busy day and you are in a bit of a hurry yourself. Parking opportunities are scarce. Indeed, the only open spaces appear to be those designated for the handicapped.[1] Because you yourself do not have a disability you drive right past what might be a convenient solution to your parking woes and look for an opening elsewhere. However, not everyone shares your strategy, as you notice a vehicle park in one of those same open handicapped parking spots. This person does not have a disability nor does this person have the proper parking identification. “I am only going to be a few minutes, no big deal” this person no doubt thinks. Maybe he leaves his engine running; maybe he does not. In any case, he leaves his car and goes into the store.
Shortly thereafter, a person with a disability pulls up to park outside the same facility. She is a wheelchair user who needs to park in a handicapped parking space with an adjacent, striped access aisle providing room for exiting her vehicle. She sees that all the handicapped spots are taken, specifically one taken by someone who has done so without the proper identification or through some other illicit means. In this instance such a person with a disability typically has three options: 1) wait for the offender to move his car, 2) park at the end of the parking lot or wherever else she can find adequate room, or 3) simply go home because exiting her vehicle successfully has been rendered infeasible. For many people with disabilities who need to use handicapped parking on a daily basis this situation is a highly common occurrence.[2] In each instance the offending parker has violated the law no matter how temporarily he or she has parked. Indeed, handicap parking abuse is one of the most frequent violations of the law because it is so easy to do and the law is infrequently enforced. Further, if you ask anyone who is knowledgeable on the subject they will tell you that it has become a true epidemic.[3] More than ever, stronger and more innovative methods are needed to curb handicapped parking abuses.
This paper will discuss in detail the laws associated with handicapped parking. First, it discusses handicapped parking regulations, both its early enforcement[4] and the more modern application of the Americans with Disabilities Act.[5] Second, it provides a thorough presentation of the handicapped parking system: permit regulation, architectural regulations of handicapped parking spaces, and regulation of handicapped parking locations.[6] Third, it provides a discussion of problems that lead to the abuse of handicapped parking laws.[7] Fourth, it discusses in detail methods of handicapped parking enforcement, especially volunteer handicapped parking enforcement programs.[8] Fifth, it explains why volunteer handicapped parking enforcement programs are effective as a viable enforcement response to handicapped parking violations.[9] Such volunteer enforcement programs provide a sorely needed effective and innovative method of enforcing handicapped parking laws.
II. HANDICAPPED PARKING ENFORCEMENT REGULATIONS
A. EARLY ENFORCEMENT HISTORY
Handicapped parking regulation began in the United States in the 1960s and 1970s, principally through programs adopted and implemented at state or local levels.[10] However, these programs were narrow in scope, in that only a limited number of spaces were set aside for people with severe disabilities persons and access to parking in those spaces was strictly regulated.[11] For example, the Florida legislature provided for one handicapped space at each state building open to the public and one space for every 150 on-street metered spaces.[12] The only people entitled to use these spaces were those who had to use a wheelchair for mobility and were certified as totally and permanently disabled by either a public service agency or by two licensed Florida physicians.[13]
In the late 1960s the federal government began adopting regulations that affected handicapped parking. The Architectural Barriers Act of 1968 prescribed standards for the design, construction, and alteration of buildings, structures, and facilities of federal buildings to insure that whenever possible, physically handicapped persons have ready access to, and use of, such buildings.[14] However, for purposes of regulating handicapped parking the statute was limited to federal facilities.[15] The Rehabilitation Act of 1973 ("Rehabilitation Act") extends the reach of federal regulation beyond federal facilities to federally-funded facilities.[16] In relevant part it provides that "no otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from ... participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."[17] The Fair Housing Act ("FHA")[18] prohibits actions that "discriminate in the sale or rental, or [that] otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap."[19] Under the FHA the term "handicap" is defined as "(1) a physical or mental impairment which substantially limits one or more of [a] person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment,"[20] and discrimination is defined to include "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."[21]
B. THE AMERICANS WITH DISABILITIES ACT
Finally, the most relevant modern regulations affecting handicapped parking are found in the Americans with Disabilities Act of 1990 (“ADA”).[22] The ADA is modeled after the Rehabilitation Act of 1973, but goes beyond the earlier statute, which applies only to federal employers and private employers who receive federal funds.[23] The substantive provisions of the ADA are divided into three titles. Title I prohibits employment discrimination against individuals with disabilities.[24] Title II prohibits discrimination against people with disabilities in public services, including public transportation.[25] Title III prohibits discrimination against people with disabilities in public accommodations and other services operated by private entities.[26]
When it was signed into law by President George H. W. Bush on July 26, 1990,[27] the ADA was hailed by supporters as the “emancipation proclamation” for the nation’s estimated forty three million Americans with disabilities.[28] Both supporters and critics have agreed that it is the most comprehensive civil rights legislation passed by Congress since the 1964 Civil Rights Act[29] and has since had far-reaching effects, not only for people with disabilities, but also for businesses and taxpayers.[30]
The stated goal of the ADA is the elimination of discrimination against individuals with disabilities.[31] It prohibits the exclusion of people with disabilities from everyday activities, such as shopping at the store, watching a movie in a theater, enjoying a meal at a restaurant, exercising at a health club, or having a car serviced at a garage.[32] The ADA recognized that the majority of public facilities were inaccessible to those using wheelchairs and other individuals with disabilities.[33] This inaccessibility is a major discrimination imposed upon such persons.[34] To combat this form of discrimination, Title III requires that places of public accommodation and commercial facilities be designed and constructed in compliance with detailed accessibility standards.[35] For existing buildings, Title III requires that structural barriers be removed where readily achievable.[36] Further, it requires that all commercial facilities[37] be ''readily accessible to and usable by'' individuals with disabilities.[38] According to the legislative history this means that parking areas should be accessible if a facility is to be ''readily accessible to and usable by'' individuals with disabilities.[39] Thus, Title III of the ADA is the source of the handicap parking entitlement.[40]
III. THE HANDICAPPED PARKING SYSTEM
Beyond federal legislation, the legal framework governing handicapped parking spots is surprisingly complex, involving intricate allocations of responsibility between federal, state, and local governments.[41] According to Miller and Singer, the mosaic of rules governing handicapped parking divides into two basic spheres:[42] 1) permit regulation (rules governing the issuance and form of handicapped parking permits),[43] and 2) architectural and site regulation (rules for design and siting of handicapped parking spaces at commercial facilities, workplaces, public streets, and residential buildings).[44]
A. PERMIT REGULATION
In order to legally park in a handicapped parking space one needs a valid handicapped parking permit. Therefore, parking permits determine who is eligible to use handicapped parking.[45] That entails that the number of permits outstanding determines both the number of handicapped spaces that are allocated and their locations.[46] Handicapped parking permitting is generally regulated by the states,[47] but subject to certain federal mandates.[48] The baseline federal guidelines for handicapped parking are provided in the United States Department of Transportation (“DOT”) Uniform System for Parking for Persons with Disabilities (“Uniform System”).[49] The stated purpose is to “provide guidelines to States for the establishment of a uniform system for handicapped parking for persons with disabilities to enhance access and the safety of persons with disabilities which limit or impair the ability to walk.”[50]
Under the Uniform System handicapped parking permits take one of two forms: specially marked license plates[51] or removable placards, commonly referred to as “hang-tags.”[52] Both permit forms must display the International Symbol of Access,[53] a wheelchair design.[54] Handicapped license plates are issued to the vehicle registered in the applicant’s name if the vehicle is primarily used to transport persons with disabilities which limit or impair the ability to walk.[55] Hang-tags can be issued for both permanent and temporary disabilities.[56] Hang-tags are designed to hang from the rear view mirror when the vehicle is not in use; if there is no rear view mirror the placard is placed on the dashboard.[57] Hang-tags are more convenient than plates because they can be removed from the vehicle. This can be particularly advantageous to a person with a disability who has to borrow or rent a car, rides with someone else, or owns more than one vehicle.[58] The DOT mandates that the states make available both forms of permits.[59] Both forms entitle holders to use handicapped spots in their home states and in the other forty-nine states.[60]
1. Qualifying Conditions
In order to obtain a handicapped parking permit an individual must be eligible based on certain baseline medical conditions.[61] In all states, issuance of a valid permit depends on receipt of a certificate signed by a health professional proving the existence of such medical conditions.[62] The Uniform System provides that authorization for determining eligibility for handicapped permits be conducted only by licensed physicians.[63] But in some states professionals other than medical doctors, including chiropractors,[64] podiatrists,[65] nurses,[66] physician’s assistants,[67] and Christian Science practitioners[68] can sign the forms.
The Uniform System sets out six qualifying conditions the relevant medical person must consider when determining a person’s eligibility for a handicapped parking permit: 1) inability to walk 200 feet without stopping to rest; 2) inability to walk without the use of or assistance from a device or person; 3) severe lung disease, as measured by respiratory volume or arterial oxygen level; 4) use of portable oxygen; 5) cardiac condition of American Heart Association Class III or IV; or 6) severe limitation in the ability to walk due to an arthritic, neurological, or orthopedic condition.[69] Again, the majority of states follow the Uniform System’s standards, but a few states incorporate notable variations. For example, in some states permits are issued with just a certificate stating that the individual suffers from a condition that severely limits mobility.[70] Some states authorize permits for amputees.[71] Some states even provide permits for non-physical disabilities, such as for visually[72] or audio-impaired persons.[73]
As Miller and Singer point out, the criterion that permits be given to persons unable to walk 200 feet without stopping to rest has proven problematic, because whether a person needs to stop and rest is a highly subjective judgment.[74] Because of the potential difficulties thereby created, some states impose stricter standards.[75] Yet, in others the opposite occurs. For example, New Mexico requires that a person not be able to walk 100 feet without resting,[76] while in Missouri the distance is just fifty feet.[77]
Finally, in some states even pregnant women and the elderly “qualify” for specially designated parking spaces.[78] Although not part of the handicapped parking program per se, “stork” parking – setting aside parking spaces reserved for new parents or expectant mothers – has become more common at shopping malls and the like.[79] Nearly all of these programs are voluntarily adopted by merchants and operate without sanction of law, but a few jurisdictions have taken things further.[80] For example, in Georgia the definition of “temporarily disabled person” includes “any woman who is pregnant and who presents a sworn affidavit of a medical doctor attesting to a medical need for access to parking for persons with disabilities.”[81] The States of Louisiana, Ohio, Wyoming, Illinois, and Florida, just to name a few, have also either proposed or enacted their own pregnancy-related handicapped parking laws.[82] Specifically designated parking for the elderly is less common than stork parking, and likewise is not typically a result of legislation, but nonetheless it can still be seen at many stores across the country, most notably at grocery stores.[83] In the majority of parking lots that include them, stork and elderly parking spaces are located next to handicapped spots.
2. Permit Time Restrictions
Handicapped parking permits are also subject to periodic renewal, as well as expiration. Federal regulations require that temporary parking permits be issued for no longer than six months.[84] However, temporary permits can be issued for shorter periods of time, based on a physician’s assessment of the probable length of time the given individual will have the disability.[85]
For parking permits for permanent disabilities the DOT requires periodic renewal, but does not suggest a specific time frame.[86] Therefore, renewal periods and procedures vary from state to state. For example, in New York some localities set a three-year limit, some five, some ten, and some impose no limit at all.[87] The period is five years in Connecticut[88] and four years in Maine.[89] Some states require a new physician’s certificate for renewal,[90] while in other states permits are renewed automatically by mail, with no requirements for recertification by a physician.[91] As Miller and Singer point out, requirements for frequent renewal have encountered resistance from drivers with disabilities who find returning to the department of motor vehicles or obtaining new certification an inconvenience.[92]
B. ARCHITECTURAL REQUIREMENTS FOR HANDICAPPED
PARKING SPACES
When a business, State or local government agency, or other covered entity, stripes or restripes a parking lot, it must provide accessible parking spaces, as required by the ADA Standards for Accessible Design (“ADA Design Guide”).[93] Failure to do so violates the ADA.[94] The architectural requirements of the ADA in regard to the design and location of handicapped parking spaces are laid out in the ADA Accessible Guidelines for Buildings and Facilities (“ADAAG”).[95] Under the ADAAG accessible parking spaces serving a building must be located on the shortest accessible route of travel from adjacent parking to an accessible entrance.[96] In parking facilities that do not serve a particular building, accessible parking must be located on the shortest accessible route of travel to an accessible pedestrian entrance of the parking facility.[97] Where buildings have multiple accessible entrances with adjacent parking, the accessible parking spaces must be dispersed and located closest to the accessible entrances.[98] When accessible parking spaces are added in an existing parking lot, spaces must be on the most level ground close to the accessible entrance.[99] An accessible route must always be provided from the accessible parking area to the accessible entrance.[100] An accessible route must not have curbs or stairs, be at least three feet wide, and have a firm, stable, slip-resistant surface.[101] The slope along the accessible route must not be greater than 1:12 in the direction of travel.[102] Accessible parking spaces may be clustered in one or more lots if equivalent or greater accessibility is provided in terms of distance from the accessible entrance, parking fees, and convenience.[103]
Both the ADA Design Guide and ADAAG provide key information about how to create accessible car and van spaces and how many spaces to provide in a given parking lot. Under the ADAGG accessible parking spaces must be at least 96 inches (2440 mm) wide.[104] Accessible parking spaces for cars must have at least a 60-inch-wide access aisle adjacent to the designated parking space.[105] The access aisle must be wide enough to permit a person using a wheelchair to enter or exit the car.[106] These parking spaces are identified with a sign and located on level ground.[107] Further features of accessible parking spaces for cars are as follows: a sign with the international symbol of accessibility mounted high enough so it can be seen while a vehicle is parked in the space; if the accessible route is located in front of the space, wheel stops must be installed to keep vehicles from reducing the route’s width below 36 inches; an access aisle of at least 60-inch width must be level (1:50 (2%) maximum slope in all directions), must be the same length as the adjacent parking space(s) it serves, and must connect to an accessible route to the building; ramps must not extend into the access aisle; the boundary of the access aisle must be marked (the end may be a squared or curved shape); and two parking spaces may share an access aisle.[108]